Worker argues right to pay rise during 15-year sick leave
An IBM tech worker paid an annual salary of £54,000 whilst on sick leave for 15 years has taken legal action against his employer, claiming disability discrimination because he hasn’t received a pay rise in the time he has been off work.
Mr Clifford argues his £54,028 salary, which is paid under an IBM plan until he is 65, is not enough and will 'wither' over time due to inflation. Under the plan, a person who is unable to work remains an employee and has no obligation to work.
The Employment Tribunal dismissed Mr Clifford’s claims, finding he has been given a “very substantial benefit” and “favourable treatment”.
In April 2013, a compromise agreement was reached and his complaints were settled by putting him on the company's disability plan. An employee on the plan has a “right”, until recovery, retirement, or death if earlier, to be paid 75% of agreed earnings.
In Mr Clifford's case, his agreed salary was £72,037 - meaning from 2013 he would be paid £54,028 per year after 25% was deducted. He was also paid £8,685 to settle his holiday pay complaints in 2013 and agreed never to raise a further grievance about the same issues.
However, in February 2022 Mr Clifford took IBM to an Employment Tribunal with new disability discrimination claims, mirroring his previous grievance. He said he had been treated “unfavourably” with no salary increase since 2013, or holiday entitlement, and compared himself to a non-disabled employee who would have been paid their full salary during holidays.
Discrimination means treating a person unfairly because of who they are or because they possess certain characteristics.
He said:
"The point of the plan was to give security to employees not able to work - that was not achieved if payments were forever frozen."
Employment Judge Paul Housego dismissed his case. He said:
"That active employees may get pay rises, but inactive employees do not, is a difference, but is not, in my judgement, a detriment caused by something arising from disability. The complaint is in fact that the benefit of being an inactive employee on the Plan is not generous enough, because the payments have been at a fixed level since 6 April 2013, now ten years, and may remain so.
"The claim is that the absence of increase in salary is disability discrimination because it is less favourable treatment than afforded those not disabled. This contention is not sustainable because only the disabled can benefit from the plan. It is not disability discrimination that the Plan is not even more generous.
"Even if the value of the £50,000 a year halved over 30 years, it is still a very substantial benefit. However, this is not the issue for, fundamentally, the terms of something given as a benefit to the disabled, and not available to those not disabled, cannot be less favourable treatment related to disability. It is more favourable treatment, not less."
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